Professors Bach and Sidhu Submit Amicus Brief

November 14, 2012

Professor Dawinder “Dave” Sidhu has joined a select group of 13th Amendment scholars across the country to prepare an amicus brief in a closely watched case that is pending before the U.S. Court of Appeals for the 10th Circuit. Professor George Bach (`02), who is a member of the 10th Circuit bar, filed the brief on behalf of the scholars.

The case arose from the 2010 harassment and branding of a swastika by three white men on the arm of a developmentally disabled Native American man in Farmington. The men were indicted and sentenced for violating the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act [18 U.S.C. § 249(a)(1)], which makes it a crime to “willfully cause bodily injury to any person or,” through the use of certain instruments, “attempt to cause bodily injury to any person, because of the actual or perceived race, color, religion or national origin of any person.” It was the first case to be filed under the new hate crime law.

This provision of the act was passed pursuant to Congress’s power under the 13th Amendment. The 13th Amendment abolished slavery and involuntary servitude. It also gave Congress the ability to enforce this ban through appropriate legislation.

The defendants challenged their indictments on the grounds that Congress exceeded its authority in passing 18 U.S.C. § 249(a)(1). The defendants claimed, in part, that the 13th Amendment’s protections extend only to African-American victims. The federal district court in New Mexico disagreed. One of the defendants has now appealed this decision to the 10th Circuit.

The amicus brief argues that Section 249(a)(1) “falls well within Congress’ Thirteenth Amendment enforcement power and is plainly constitutional.” The brief clarifies that the “Thirteenth Amendment empowers Congress to eradicate the badges and incidents of slavery as to any racial group,” not just African-Americans. With respect to the facts of this case, the brief points out that the victim was selected because of his race and that “branding is a quintessential badge and incident of slavery.”

Sidhu, whose scholarship includes the 13th Amendment, worked on the brief with three other leading 13th Amendment scholars and enlisted Bach’s assistance in filing the brief. “This was a wonderfully collaborative effort by law professors committed to ensuring that the 13th Amendment is properly construed, and is applied to this troubling case,” said Sidhu.